- New Jersey has a total of 26 statutory factors judges must consider at sentencing.
- The state’s three-strikes law allows judges to impose life without parole for certain violent crimes when a defendant has two prior convictions of certain enumerated crimes.
Art. 1, ¶12. Excessive bail or fines; cruel and unusual punishments:Excessive bail shall not be required, excessive fines shall not be imposed, and cruel and unusual punishments shall not be inflicted. It shall not be cruel and unusual punishment to impose the death penalty on a person convicted of purposely or knowingly causing death or purposely or knowingly causing serious bodily injury resulting in death who committed the homicidal act by his own conduct or who as an accomplice procured the commission of the offense by payment or promise of payment of anything of pecuniary value.
Statutory factors for sentencing
Judges must consider the following factors when imposing a sentence:
- In determining the appropriate sentence to be imposed on a person who has been convicted of an offense, the court shall consider the following aggravating circumstances:
- The nature and circumstances of the offense, and the role of the actor therein, including whether or not it was committed in an especially heinous, cruel, or depraved manner;
- The gravity and seriousness of harm inflicted on the victim, including whether or not the defendant knew or reasonably should have known that the victim of the offense was particularly vulnerable or incapable of resistance due to advanced age, ill-health, or extreme youth, or was for any other reason substantially incapable of exercising normal physical or mental power of resistance;
- The risk that the defendant will commit another offense;
- A lesser sentence will depreciate the seriousness of the defendant's offense because it involved a breach of the public trust under chapters 27 and 30, or the defendant took advantage of a position of trust or confidence to commit the offense;
- There is a substantial likelihood that the defendant is involved in organized criminal activity;
- The extent of the defendant's prior criminal record and the seriousness of the offenses of which he has been convicted;
- The defendant committed the offense pursuant to an agreement that he either pay or be paid for the commission of the offense and the pecuniary incentive was beyond that inherent in the offense itself;
- The defendant committed the offense against a police or other law enforcement officer, correctional employee or fireman, acting in the performance of his duties while in uniform or exhibiting evidence of his authority; the defendant committed the offense because of the status of the victim as a public servant; or the defendant committed the offense against a sports official, athletic coach or manager, acting in or immediately following the performance of his duties or because of the person's status as a sports official, coach or manager;
- The need for deterring the defendant and others from violating the law;
- The offense involved fraudulent or deceptive practices committed against any department or division of State government;
- The imposition of a fine, penalty or order of restitution without also imposing a term of imprisonment would be perceived by the defendant or others merely as part of the cost of doing business, or as an acceptable contingent business or operating expense associated with the initial decision to resort to unlawful practices;
- The defendant committed the offense against a person who he knew or should have known was 60 years of age or older, or disabled; and
- The defendant, while in the course of committing or attempting to commit the crime, including the immediate flight therefrom, used or was in possession of a stolen motor vehicle.
- In determining the appropriate sentence to be imposed on a person who has been convicted of an offense, the court may properly consider the following mitigating circumstances:
- The defendant's conduct neither caused nor threatened serious harm;
- The defendant did not contemplate that his conduct would cause or threaten serious harm;
- The defendant acted under a strong provocation;
- There were substantial grounds tending to excuse or justify the defendant's conduct, though failing to establish a defense;
- The victim of the defendant's conduct induced or facilitated its commission;
- The defendant has compensated or will compensate the victim of his conduct for the damage or injury that he sustained, or will participate in a program of community service;
- The defendant has no history of prior delinquency or criminal activity or has led a law-abiding life for a substantial period of time before the commission of the present offense;
- The defendant's conduct was the result of circumstances unlikely to recur;
- The character and attitude of the defendant indicate that he is unlikely to commit another offense;
- The defendant is particularly likely to respond affirmatively to probationary treatment;
- The imprisonment of the defendant would entail excessive hardship to himself or his dependents;
- The willingness of the defendant to cooperate with law enforcement authorities;
- The conduct of a youthful defendant was substantially influenced by another person more mature than the defendant.
No Early Release Act (NERA)
New Jersey now requires offenders convicted of certain enumerated first or second-degree crimes to serve at least 85% of their sentences before being eligible for parole. N.J.S.A. 2C:43-7.2.
Three Strikes Law
The state allows for life without parole sentences for offenders convicted of certain violent crimes (murder, aggravated manslaughter, first-degree kidnapping, aggravated sexual assault occurring (1) during an attempted robbery, kidnapping, homicide, aggravated assault, burglary, arson, or criminal escape, (2) while the actor is armed with a weapon or an item that would reasonably lead a victim to believe it was a weapon, (3) with the help of one or more others and with physical force, or (4) that causes severe personal injury; or carjacking) who have twice been convicted of any of the designated crimes. N.J.S.A. 2C:43-7.1(a).
Judges must sentence defendants within the statutory range after identifying and weighing the applicable mitigating and aggravating factors. State v. Natale, 184 N.J. 458 (2005). A sentencing court must compile an explicit and exhaustive statement of aggravating and mitigating factors and how they are weighed and balanced. Natale, 184 N.J. at 488.
While the state now employs statutory factors at sentencing, the “whole person” concept has survived in limited form “through the application of some aggravating and mitigating factors that, although relating to the crime, still invite consideration by the sentencing court of the individual defendant’s unique character and qualities.” State v. Randolph, 210 N.J. 330, 349 (2012).
Appellate courts will modify sentences when (1) a review of the sentence shows that legislative policies (such as sentencing guidelines) were violated; (2) a review of aggravating and mitigating circumstances found at sentencing shows that they were not based upon competent credible evidence in the record; and (3) circumstances in which the court followed sentencing guidelines, but the application of the guidelines to the facts of the case resulted in a sentence that is “clearly unreasonable so as to shock the judicial conscience.” State v. Roth, 95 N.J. 334, 365 (1984).
When reconsideration or resentencing is ordered after an appeal, a trial court must consider post-sentencing rehabilitation in its consideration of mitigating factors unless the remand order explicitly specifies a more limited resentencing proceeding. Randolph, 210 N.J. at 354.
New Jersey courts employ a three-part test to determine whether a sentence constitutes cruel and unusual punishment: (1) whether the punishment conforms with contemporary standards of decency; (2) whether the punishment is grossly disproportionate to the offense; (3) whether the punishment goes beyond what is necessary to accomplish any legitimate penological objective. State v. Johnson, 166 N.J. 523, 548 (2001).
Court upheld life without parole sentence for defendant convicted of robbery and assault; offender had previously been convicted of violent crimes and was sentenced under the state’s three-strikes law. State v. Oliver, 162 N.J. 580, 587 (2000) (holding, inter alia, that counting, as a “strike,” a robbery conviction that occurred before the passage of the three-strikes law did not violate the ex post facto clause).
Court upheld life without parole sentence for conspiracy to commit robbery, robbery, aggravated assault, and illegal possession of a weapon convictions under state’s three strikes law. State v. Van Valen, 316 N.J. Super 20, 21 (N.J.App. 1998).
Court upheld sentence, under three-strikes law, of life in prison without parole for armed robbery, multiple counts of unlawful possession of a weapon, and terroristic threats. State v. Padro, 2007 WL1174442, *5 (N.J.App. 2007).
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